Supreme Court

Judge:

The Honourable Justice Ann E. Smith

Heard:

January 3, 4, 5; 9, 2017, in Halifax, Nova Scotia

Written Decision:

March 8, 2017

Subject:

Real property law; easements; right of way; ancillary rights; overburden; substantial interference

Summary:

The applicants have right of ways over the respondents’ properties, including a right of way over a private road known as General M Drive.  The applicants seek a declaration that they can re-route and widen the roadway, create associated ditches, and remove fences placed by the respondents.  They also seek an injunction preventing the respondents from interfering with their use of the right of ways.  The respondents seek damages for damage caused by Neil Laamanen to their property during snow removal and general damages against Mr. Laamanen for intentionally blocking their driveway and barn with snow.  They also seek an injunction ordering the applicants to cease plowing snow on the right of ways in such a way as to cause damage to the respondents’ property.

Issues:

(1)        What is the scope of the applicants’ right of ways?

(2)        Are the proposed upgrades to General M Drive reasonable?

(3)        Was the fence placed by the respondents a substantial interference with the applicants’ use of the right of ways?

(4)        Will the applicants’ proposed commercial use of the roadway overburden it?

(5)        Did the applicants commit acts of nuisance and trespass entitling the respondents to damages?

Result:

The grant of the right of ways showed a clear and unambiguous intention to convey a 66-foot unrestricted right of way over General M Drive, and an 86-foot right of way over the lands of the respondent Suzanne Cleary.  The proposed upgrades to General M Drive were reasonable.  The fence erected by the respondents substantially and unreasonably interfered with the applicants’ use of the right of ways.  Neither the language of the grant, nor the surrounding circumstances, suggested that the 66-foot right of way was intended to be used for residential purposes only.  However, it was inadvisable to determine whether the applicants’ proposed use of the right of way would overburden it without evidence of that use.  The respondents were not entitled to damages.